John Mark Zeberkiewicz is one of the leading Delaware corporate lawyers of his generation.
John Mark Zeberkiewicz focuses his practice on complex transactional matters involving Delaware corporations, including mergers and acquisitions, corporate governance, and corporate finance. He represents corporations, boards of directors, special committees, and executives in a wide range of significant matters. Widely recognized for his extraordinary technical skill and unrelenting energy, John Mark has built a reputation among clients for tackling complex problems with practical, sophisticated solutions. Sources at Chambers USA have stated that John Mark “tirelessly constructs creative solutions to complex business dilemmas,” with clients describing him as “strategically brilliant” and “the smartest person in this space.” “His encyclopedic knowledge of Delaware law coupled with his practical wisdom equip board members and executive leadership to make responsible and bold decisions” (The Legal 500).
A driving force behind some of the most important corporate legislation in years, John Mark is a member of Delaware’s Corporation Law Council and has served on drafting subcommittees responsible for significant amendments to Delaware’s General Corporation Law, including the subcommittee responsible for the adoption of the statutes relating to the ratification of corporate acts, captive insurance for directors and officers, and numerous other provisions of the Delaware General Corporation Law. John Mark is the co-editor of The Delaware Law of Corporations & Business Organizations, a leading treatise on Delaware corporate law; he has published more than 75 articles in the field of corporate governance and mergers and acquisitions; and he is a frequent presenter on developments in Delaware corporate law.
John Mark is a member of the editorial advisory board of Insights. He has served as an expert on Delaware corporate law matters, and was appointed as a special master in a proceeding before the Delaware Court of Chancery.
Mergers & Acquisitions
Special Committees & Investigations
- Representation of numerous corporations, including Facebook, Inc., SeaWorld, GoPro, Etsy, and others, in connection with the adoption of their IPO certificate of incorporation and bylaws and structural profile
- Representation of Allergan, Inc. in connection with the adoption of structural provisions of its certificate of incorporation and bylaws as well as its defense in the hostile offer from Valeant Pharmaceuticals and Pershing Square
- Representation of Apollo Global Management as Delaware counsel in connection with multiple public company acquisitions, including ADT, Inc., Diamond Resorts International Inc., ClubCorp, as well as several private company sales and acquisitions
- Representations of multiple public and private companies in connection with ratification of defective corporate acts
- Representation of various private equity sponsors and portfolio companies in so-called “UP-C” transactions
- Representation of the board of directors of Selectica, Inc., in connection with the adoption of its NOL Rights Plan, the triggering of the plan, and the directors’ successful defense against claims relating to the operation of the plan
- Representation of numerous special committees, including the committee of AmTrust Financial in connection with an asset sale to its significant stockholder as well as the Committee of Crown Media, Inc. in connection with the recapitalization transaction involving its controlling stockholder
- University of Pennsylvania Law School, J.D., cum laude
- University of Delaware, B.A., magna cum laude
Phi Beta Kappa
Amendments to the DGCL Permit Officer Exculpation
Insights | October 2022
On August 1, 2022, Section 102(b)(7) of the Delaware General Corporation Law (the DGCL) was amended to permit a corporation to include in its certificate of incorporation a provision to eliminate or limit the monetary liability of certain corporate officers for breach of the duty of care. Previously, the protection afforded by a so-called exculpatory provision…
Amendments to the DGCL Permit Captive D&O Insurance
The Harvard Law School Forum on Corporate Governance | February 24, 2022
The Delaware General Assembly has approved legislation amending Section 145 of the Delaware General Corporation Law (the “DGCL”) to authorize a Delaware corporation to use captive insurance, which is generally defined as insurance provided by or through a wholly-owned subsidiary funded by the corporation, to protect its current and former directors, officers and other indemnifiable persons…
Rosenbaum v. CytoDyn Inc.: A Review of Advance Notice Bylaws
Insights | December 2021
In Rosenbaum v. CytoDyn Inc., the Delaware Court of Chancery denied an insurgent group’s challenge to the rejection of their notice of director nominations by CytoDyn Inc. The Court’s opinion brings some clarity to an area of the law that “may not be as settled as one would think,” providing a framework for reviewing actions taken…
Dodd-Frank and Corporate Governance
Directors & Boards | 2021 Fourth Quarter
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was enacted in response to perceived excesses and other dysfunction in the financial markets that precipitated the 2008 financial crisis. The public discourse surrounding the adoption and implementation of Dodd-Frank — including the notion that institutions deemed “too big to fail,” unless appropriately restrained, would take…
Proposed Amendments to the Delaware General Corporation Law and Delaware’s Limited Liability Company and Partnership Acts
Insights | June 2021
Proposed legislation would amend the Delaware General Corporation Law, the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act and the Delaware Revised Uniform Partnership Act to clarify, among other things, the treatmentof capital stock owned by the corporation, provide a safe harbor procedure for the ratification of void and voidable acts and…
The Delaware Court of Chancery Enjoins “Extreme, Unprecedented” Stockholder Rights Plan
Insights | March 2021
In The Williams Companies Stockholder Litigation, the Delaware Court of Chancery enjoined a stockholder rights plan, having described it as having “an extreme, unprecedented collection of features.” Nevertheless, the opinion does not signal a major shift in Delaware law with respect to the adoption and maintenance of stockholder rights plans.…
Nasdaq Proposes New Diversity Rule Requiring Nasdaq-Listed Companies to Diversify Their Boards or Risk Delisting
Business Law Today | January 6, 2021
Recent events have spurred a social justice movement that has called for companies to commit to inclusion and diversity, specifically in the composition of their boards of directors.* In light of the foregoing, on December 1, 2020, Nasdaq filed a proposal with the U.S. Securities and Exchange Commission (“SEC”) that, if approved by the SEC, would condition…
Delaware Supreme Court on Costs in an Appraisal Proceeding
Insights | December 2020
In a recent decision, the Delaware Supreme Court held that an appraisal proceeding did not involve a violation of any law or rule and therefore did not constitute a “Securities Claim” giving rise to coverage for losses under the terms of a directors’ and officers’ insurance policy. It provided guidance regarding how the Delaware courts will…
Delaware Supreme Court Clarifies Standard for Liability for Disclosure Violations
Insights | August 2020
In Dohmen v. Goodman, the Delaware Supreme Court, in response to a certified question of law from the US Court of Appeals for the Ninth Circuit, provided significant guidance regarding the showing required for a plaintiff to seek compensatory damages for claims arising out of alleged disclosure violations. The Court distinguished between claims for a breach…
2020 Amendments to the General Corporation Law of the State of Delaware
Insights | July 2020
The 2020 amendments to the Delaware General Corporation Law make several important changes, including clarifying the circumstances under which emergency bylaws may be invoked, providing safe harbors for specified corporate actions taken during an emergency condition, reducing the statutory hurdles to become a public benefit corporation, providing further definition around mandatory indemnification for officers and effecting…
Like Herding Cats: An Analysis of Common State-Law Shareholder Meeting Questions
The Investment Lawyer | June 2020
For many registered investment companies under the Investment Company Act of 1940 (1940 Act) (which we will refer to generally as funds), persuading retail investors to vote their shares at shareholder meetings can be a challenge. This challenge can be compounded by the somewhat arcane rules relating to shareholder meeting mechanics. This article addresses some common…
Delaware Supreme Court Validates Federal Forum Selection Provisions
Insights | May 2020
In a landmark opinion, Salzberg v. Sciabacucchi, the Delaware Supreme Court, reversing the Delaware Court of Chancery’s decision, confirmed the facial validity of so-called federal forum selection provisions in certificates of incorporation of Delaware corporations. The Court’s opinion is significant not only for its key holding but also for the substantial guidance it provides with regard…
Revisiting Director Independence and Disinterestedness in the Demand Futility Context
Insights | March 2020
In McElrath v. Kalanick, the Delaware Supreme Court affirmed the Chancery Court’s opinion dismissing derivative claims challenging a board’s approval of what “[b]y any reasonable measure” was found to be “a flawed transaction.” In rejecting the plaintiff’s arguments that questioned the disinterestedness and independence of a majority of the director defendants, the Court made clear that…
Delaware Supreme Court Requires Strict Compliance with Deadlines in Advance Notice Bylaw
Insights | February 2020
In Saba Capital Master Fund, Ltd. v. Blackrock Credit Allocation Income Trust, the Delaware Supreme Court, reversing the earlier decision of the Court of Chancery, held that two closed-end funds properly excluded the shareholder-plaintiff’s dissident nominees at their annual meetings on the basis that the nominating shareholder failed to comply with the deadlines in the funds’…
In re LendingClub: Responding to Red Flags in the Wake of Marchand
Insights | January 2020
Two recent opinions of the Delaware courts—the Delaware Supreme Court’s opinion in Marchandv. Barnhill and the Delaware Chancery Court’slater opinion In re Clovis Oncology Inc. DerivativeLitigation—have placed an increased focus on theboard’s duty of oversight under Caremark. Althoughclaims under Caremark have been described as notoriouslydifficult to plead and prove, the Court ofChancery recently…
In re Clovis: Considering Caremark Claims after Marchand
Insights | November 2019
In In re Clovis Oncology Inc. Derivative Litigation, the Delaware Court of Chancery construed theDelaware Supreme Court’s opinion in Marchand v.Barnhill to mean that the board’s duty of oversightunder Caremark “must be more rigorously exercised”for corporations operating “in an environmentwhere externally imposed regulations governits ‘mission critical’ operations.” The Clovis Courtstated that, for purposes of adequately…
Tornetta v. Musk: The Delaware Court of Chancery Reviews Executive Compensation to Controlling Stockholders
Insights | October 2019
In Tornetta v. Musk, the Delaware Court ofChancery, addressing “issues of first impression inDelaware,” held that the rigorous entire fairnessstandard of review applies to a board’s executive compensationdecisions in respect of a controlling stockholder,absent compliance with the so-called MFWprocedural protections. Those protections involveconditioning a controlling stockholder transaction,at the outset of negotiations, on the obtainment of…
Delaware Court of Chancery Addresses Director Questionnaire Requirements in Advance Notice Bylaws
Insights | September 2019
In Saba Capital Master Fund, Ltd. v. BlackrockCredit Allocation Income Trust, the Delaware Courtof Chancery held that the failure by a shareholderseeking to nominate a competing slate of directors ina proxy contest to timely complete and return directorquestionnaires pursuant to the board’s requestfor additional information regarding the nomineesunder the company’s advance notice bylaw couldnot serve as…
Marchand v. Barnhill: Addressing and Monitoring Corporate Risk
Insights | July 2019
Stockholder plaintiffs generally face a high burden insurviving a motion to dismiss on so-called Caremarkclaims challenging the board’s compliance with its dutyof oversight. A recent Delaware Supreme Court opinionillustrates the circumstances in which a plaintiff makinga Caremark claim may withstand a motion to dismiss.It also provides guidance on implementing and monitoringsystems and controls to…
Precluding Pre-Merger Communications in Post-Merger Dispute
The Harvard Law School Forum on Corporate Governance and Financial Regulation | June 12, 2019
In Shareholder Representative Services LLC v. RSI Holdco, LLC, C.A. No. 2018-0517-KSJM (Del. Ch. May 29, 2019), the Delaware Court of Chancery upheld a provision in a private-company merger agreement precluding a buyer from using the seller’s privileged emails against the seller in post-closing litigation. Following the guidance from the decision in Great Hill Equity Partners…
Olenik v. Lodzinski: More on Structuring Controlling Stockholder Buyouts
Insights | May 2019
In Olenik v. Lodzinski, the Delaware Supreme Court provided further guidance regarding the circumstances under which the deployment of procedural protective devices pursuant to the so-called MFW standard—namely, the transaction’s negotiation and approval by an independent special committee and its adoption by a majority-of-the-minority vote—can operate to restore the presumption of the business judgment rule…
2019 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | April 2019
Proposed amendments to the Delaware GeneralCorporation Law would, among other things, addnew provisions relating to documentation of transactionby electronic means, revise the default provisionsapplicable to stockholder notices, includingthose governing appraisal, clarify the timing of unanimousconsents of directors, and make other technicalchanges.…
Drafting Minutes and Preparing Disclosures in the Post-Corwin Era
Insights | March 2019
Stockholder plaintiffs increasingly are attempting to challenge M&A transactions through alleging disclosure deficiencies based on an examination of corporate books and records. This puts added pressure on the preparation of minutes and other corporate books and records.…
Delaware Court of Chancery Strikes Federal Forum Selection Provisions
Insights | January 2019
In Sciabacucchi v. Salzberg, the Delaware Courtof Chancery struck down provisions in the certificateof incorporation of three defendant corporationspurporting to require any claim under the SecuritiesAct of 1933 (1933 Act) to be filed in the federaldistrict courts of the United States of America. Theopinion is relevant not only for its key holding butalso for the Court’s…
In re PLX: Delaware Court Provides Guidance on Potential Conflicts Involving Activist Directors
Insights | January 2019
In In re PLX Technology Inc. StockholdersLitigation, the Delaware Court of Chancery foundthat the directors of PLX Technology, Inc. (PLX), inapproving the company’s sale to Avago Technologies(Avago), breached their duty of disclosure as wellas their so-called Revlon duties to establish a processdesigned to seek the best transaction reasonablyavailable. Interestingly, the breach associated with thesales process…
Delaware Court Finds Material Adverse Effect Allowing Buyer to Terminate Merger Agreement
Insights | November 2018
The Delaware Court of Chancery’s opinion in Akorn, Inc.v. Fresenius Kabi AG constitutes what is believed to bethe first decision of a Delaware court permitting a buyerto terminate a merger agreement due to the occurrence ofa material adverse effect. While the headline holding issignificant in and of itself, the Court’s analysis is groundin existing Delaware…
Delaware Court of Chancery Validates Defective Acts and Clarifies Limited Scope of Dually Direct and Derivative Claims
Insights | September 2018
In Almond v. Glenhill Advisors LLC, the DelawareCourt of Chancery provided significant guidanceregarding the circumstances under which it would useits equitable powers under Section 205 of the DelawareGeneral Corporation Law (DGCL) to validate actsthat, due to technical failures in authorization, wouldbe void or voidable (and thus potentially give rise toclaims for rescission or rescissory or other…
MHS Capital LLC v. Goggin: Reviewing Fiduciary Duty and Exculpation Provisions in Limited Liability Company Agreements
Business Law Today | June 15, 2018
In Goggin, a member of East Coast Miner LLC (ECM) brought suit against ECM’s manager and his associates challenging several allegedly self-dealing transactions. The plaintiff alleged, among other things, that ECM’s manager had caused ECM’s part ownership of specified assets to be diverted to different entities that the manager and his associates owned and controlled. The…
Determining and Disclosing the Effect of Broker Non-Votes
The Review of Securities & Commodities Regulation | April 18, 2018
Brokers may vote uninstructed shares only on matters that are discretionary under NYSE Rule 452. The authors discuss the NYSE rule and the effect of broker non-votes under various voting and quorum standards under Delaware law. They suggest practitioners be particularly attentive to the disclosure of the effect of broker non-votes in proxy statements. They also…
2018 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | April 2018
Legislation proposing to amend the GeneralCorporation Law of the State of Delaware(DGCL) has been released by the CorporateCouncil of the Corporation Law Section ofthe Delaware State Bar Association and, ifapproved by the Corporation Law Section,is expected to be introduced to the DelawareGeneral Assembly. If enacted, the amendmentswould, among other things: (1) amendSection 262 to apply the…
The Delaware Supreme Court Provides Guidance on Directors’ Fiduciary Duty of Disclosure
Insights | April 2018
In Appel v. Berkman, the DelawareSupreme Court reversed the Delaware Courtof Chancery’sdismissal of claims relating to themerger of Diamond Resorts International,Inc. (“Diamond”), finding that the stockholdersof Diamond were not fully informedwhen they tendered their shares in a first-step tender offer followed by a back-end mergerunder Section 251(h) of the DelawareGeneral Corporation Law (DGCL). Inreversing the…
Delaware Court of Chancery Rulings Highlight the Importance of a Plaintiff’s Subjective Intent in Books and Records Action
Insights | January 2018
Two recent rulings of the Delaware Court ofChancery highlight the need to examine a stockholderplaintiff ’s objectives in seeking to inspect thecorporation’s books and records under Section 220of the Delaware General Corporation Law (DGCL).As is well known, a stockholder seeking to compelan inspection of books and records under Section220 must demonstrate a “proper purpose” for theinspection…
The Limits of Ratification: Delaware Supreme Court and Director Equity Incentive Awards
Insights | January 2018
The Delaware Supreme Court recently overturned anopinion of the Delaware Court of Chancery holdingthat stockholder approval of an equity incentive planwith broad sub-limits on the number of shares availablefor grant to non-employee directors resulted inthe stockholders’ ratification of subsequent awards tothe directors. In essence, the Supreme Court held thatstockholders’ approval of an equity incentive plan willprovide…
DFC Global: Delaware Supreme Court Emphasizes Role of the Market in Certain Appraisal Proceedings
Insights | November 2017
The number of proceedings under Section 262 ofthe Delaware General Corporation Law (DGCL),in which stockholders who have not voted in favorof a merger and have otherwise perfected their rightto seek a judicially determined assessment of the“fair value,” in cash, of their shares, has increasedsignificantly over the past few years, providing thecourts with additional opportunities to explore…
The Delaware Court of Chancery Revisits Director Equity Awards
Insights | May 24, 2017
The Delaware Court of Chancery recently held thatstockholder approval of an equity incentive plan thatincluded relatively broad sub-limits on the number ofshares available specifically for awards to non-employeedirectors provided “advance ratification” of subsequentawards to the non-employee directors. The Court’sopinion provides significant guidance to corporationsand practitioners in drafting and seeking stockholderapproval of equity incentive plans, and in…
2017 Proposed Amendments to the Delaware General Corporation Law
Insights | April 30, 2017
Proposed amendments to the General Corporation Lawof the State of Delaware have been approved by theCorporation Law Section of the Delaware State BarAssociation and are expected to be introduced to theDelaware General Assembly. The amendments addressblockchain technology, stockholder consents, mergersand consolidations, and annual reporting.…
Frechter v. Zier: Delaware Court of Chancery Provides Guidance on Supermajority Voting Provisions
Insights | March 31, 2017
In Frechter v. Zier, the Delaware Court of Chancery invalidated a bylaw that, on its own, purported to require a vote of two-thirds of the corporation’s outstanding voting stock to remove directors. The Court’s opinion provides guidance as to the implementation of supermajority voting provisions under the Delaware General Corporation Law (DGCL), including when such provisions…
Delaware Supreme Court Revisits Director Independence in Considering Derivative Demands
Insights | February 28, 2017
In a recent decision, the Delaware Supreme Court has provided insight into the factors the Delaware courts will consider in assessing director independence in the context of derivative suits. These factors include personal relationships and the board’s previous determinations under the stock exchange rules.…
Delaware Supreme Court Clarifies Grounds for Jurisdiction
Insights | June 2016
In Genuine Parts Company v. Cepec, the DelawareSupreme Court held that the provisions of Delaware’sGeneral Corporation Law (DGCL) requiring foreigncorporations to register to qualify to do business inthe State of Delaware and to appoint an agent forservice of process do not, of themselves, operate tosubject the foreign corporation to general jurisdictionin Delaware. The Court in …
Disclaiming Reliance on Extra-Contractual Representations under Delaware Law
Insights | April 2016
In FdG Logistics LLC v. A&R Logistics Holdings,Inc.,the Delaware Court of Chancery clarifi ed thetype of language that must be included in an acquisitionagreement for a party to demonstrate that theother party has eff ectively disclaimed reliance onextra-contractual representations. In sum, the FdGLogistics Court held that the anti-reliance languageat issue, which was merely a…
2016 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | April 2016
Legislation setting forth the 2016 proposedamendments to the General Corporation Law ofthe State of Delaware (DGCL) has been approvedby the Corporation Law Section of the DelawareState Bar Association and is expected to be introducedto the Delaware General Assembly. If theamendments become effective, they would resultin several important changes to the DGCL.Among other things, the proposed amendmentswould…
The New Paradigm (Burden) Shift: The Business Judgment Rule After KKR
Insights | December 2015
The Delaware Supreme Court recently held thatan uncoerced, fully informed vote of a majority ofthe disinterested stockholders adopting a mergeragreement invoked the business judgment rule standardof review, even though the vote was statutorilyrequired. The opinion left unanswered the questionas to whether the business judgment rule invokedin that context was a rebuttable presumption ora substantive rule of…
Recent Delaware Court of Chancery Opinion Provides Guidance on Advancement and Indemnification
Insights | October 2015
A recent opinion of the Delaware Court ofChancery provides guidance on drafting indemnification and advancement provisions, and clarifiesthe circumstances under which a director or officer may or may not be entitled to advancement “byreason of the fact” of his or her service as such. TheCourt held, among other things, that a provision ofa certificate of incorporation…
New Delaware Court of Chancery Opinion Provides Guidance for Director Compensation Practices
Insights | June 2015
A recent opinion of the Delaware Court ofChancery, Calma v. Templeton, has broughtrenewed attention to the issue of directorcompensation. The opinion holds that directorcompensation decisions may not be subject tothe presumption of the business judgment rule,but may instead be reviewed under the entirefairness standard. However, it also addresses thecircumstances under which stockholder ratification of director compensation…
Court Sanctions Forum Selection Arrangements and Confirms Power to Restrict Books and Records Inspections
Insights | March 2015
In United Technologies Corp. v. Treppel, theDelaware Supreme Court unanimously reversedthe Court of Chancery’s ruling denying thedefendant’s request to restrict the use of informationobtained in plaintiff’s inspection ofbooks and records to actions in the Delawarecourts.
The Rights and Duties of Blockholder Directors
The Business Lawyer | Winter 2014/2015
Delaware corporate law embraces a “board-centric” model of governance contemplatingthat, as a general matter, all directors will participate in a collective and deliberativedecision-making process. Rather than serving as a justification for a board majority to disempowerdirectors elected or appointed by or at the direction of a particular class or seriesof stock or an insurgent group—which we…
Recent Chancery Court Opinions on Ripeness
Delaware Business Court Insider | December 10, 2014
The Delaware Court of Chancery’s ruling in Pontiac General Employees Retirement System v. Ballantine, is the most recent statement on so-called “dead hand” proxy puts—the provisions in credit agreements that trigger an acceleration of the borrower’s indebtedness upon a change in amajority of its board within a specified timeframe.
Chancery Dismisses Stockholder Suit Over Expedia CEO Award
Delaware Business Court Insider | July 30, 2014
In Friedman v. Khosrowshahi, the Court of Chancery dismissed the plaintiff’s claims challenging the decision by the compensation committee of Expedia Inc. to accelerate the vesting of a restricted stock unit award.
Proposed Amendments to the DGCL to Limit Applicability Of the Delaware Supreme Court’s Holding in ‘ATP Tour’
Corporate Counsel Weekly | June 18, 2014
In ATP Tour, Inc. v. Deutscher Tennis Bund, the Delaware Supreme Court, held that a fee-shifting provision of a Delaware nonstock corporation’s bylaws applicable to intra-corporate disputes could be valid and enforceable.
Chancery Court Decides First Action Under New Section 205
Delaware Business Court Insider | May 7, 2014
On April 1, Trupanion Inc. and its chief executive officer filed what is believed to be the first petition seeking relief in the Delaware Court of Chancery pursuant to Section 205 of the Delaware General Corporation Law. In less than a month, the Chancery Court issued a final order in the action, resolving multiple questions relating…
2014 Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | May 2014
The 2014 proposed amendments to the DGCL would give corporations and their counsel increased flexibility in structuring transactions and in effecting various corporate acts.
Considerations in Drafting Board Observer Arrangements
Business Law Today | April 2014
Although board observer arrangements are not uncommon, there is little case law squarely addressing the rights, duties, and potential liabilities of board observers. Reference to basic principles of corporate law, however, should provide corporations and investors sufficient guidance in structuring board observer arrangements. These arrangements may offer several advantages over a traditional designated board seat. From…
Restoring Equity: Delaware’s Legislative Cure for Defects in Stock Issuances and Other Corporate Acts
The Business Lawyer | February 2014
The Delaware legislature has adopted amendments to the General Corporation Law of the State of Delaware, which amendments will become effective on April 1, 2014, that are designed to overrule the existing precedents requiring that defective stock and acts be found void.
Klaassen v. Allegro: Implementing the Stockholders’ Agreement
Delaware Business Court Insider | December 4, 2013
In Klaassen v. Allegro Development, the Delaware Court of Chancery indicated that governance provisions included in stockholders’ agreements may be enforceable against the parties to those agreements, even if the provisions conflict with the certificate of incorporation or the DGCL.
Preserving (or Limiting) Contractual Claims to Address ‘Sandbagging’
Delaware Business Court Insider | July 24, 2013
The term “sandbagging” has been used generally in the M&A context to refer to the buyer’s assertion of post-closing claims for breach of representation and warranty despite its pre-closing knowledge that the seller’s representations or warranties were not true and correct when made.
Significant Proposed Amendments to the General Corporation Law of the State of Delaware
Insights | June 2013
The 2013 proposed amendments to the DGCL include some of the most substantial and groundbreaking developments in statutory law in Delaware in years.
Streamlining Two-Step Mergers With Proposed Amendment to DGCL
Delaware Business Court Insider | April 24, 2013
Recent proposed amendments to the Delaware General Corporation Law contain an important addition to Section 251, which governs mergers between Delaware corporations, that would effectively allow the parties to dispense with the need for a back-end stockholder vote on a merger in certain cases where the buyer has acquired a sufficient number of shares in a front-end tender offer.
The Equitable Case for Ratification
Delaware Business Court Insider | March 27, 2013
Among the many significant proposed changes to Delaware’s General Corporation Law that were submitted to the corporation law section of the Delaware State Bar Association this March for approval, the sections dealing with ratification of defective corporate acts stand out as particularly noteworthy.
Court of Chancery Addresses Validity of Entity Action
Delaware Business Court Insider | October 24, 2012
In Feeley v. NHAOCG, the Delaware Court of Chancery addressed several important issues regarding the validity of actions taken in violation of a Delaware limited liability company’s operating agreement.
Chancery Arbitrations after Year One: Annotated New Form
ABA | August 16, 2012
On January 5, 2010, the Delaware Court of Chancery adopted a set of rules providing for arbitration in the court, giving life to a recently adopted statute permitting Delaware’s Chancery judges to act as private arbitrators.
Delaware Chancery Court Questions Use of Advance Notice Bylaw
Delaware Business Court Insider | June 27, 2012
In HealthCor Management v. Allscripts Healthcare Solutions, the Court of Chancery made a few noteworthy observations regarding the use — and potential limitations — of advance notice bylaws.
Chancery Court Provides Guidance on Structuring Financings
Delaware Business Court Insider | April 4, 2012
In Zimmerman v. Crothall, the Delaware Court of Chancery, ruling on a motion for summary judgment, found that the defendants – directors and venture capital investors of Adhezion Biomedical – failed to establish that Adhezion’s issuance of preferred equity and convertible debt to the defendants that was not offered to all holders on the same terms were not self-interested transactions.
Revisiting the Special Committee Process: ‘In re Southern Peru Copper Corporation’
BNA's Corporate Counsel Weekly | November 30, 2011
The Delaware Court of Chancery’s post-trial opinion in In re Southern Peru Copper Corporation is perhaps most notable for the staggering damages award—$1.263 billion—against the controlling stockholder defendants for breach of the duty of loyalty in a transaction subject to entire fairness review.
Chancery Court Sensitive to Potential Conflicts of Financial Advisors in M&A
Delaware Business Court Insider | September 7, 2011
Over the past few years, the level of disclosure regarding the work performed by a financial adviser rendering a fairness opinion in connection with an M&A transaction has increased substantially, due in part to decisions of the Delaware Court of Chancery.
Valid Issuance of Capital Stock
The Review of Securities & Commodities Regulation | September 7, 2011
In recent months, the Delaware Court of Chancery has issued two opinions, Olson v. ev3, Inc. and Blades v. Wisehart, dealing with the validity of capital stock.
Fair Summary II: An Update on Delaware’s Disclosure Regime Regarding Fairness Opinions
The Business Lawyer | August 2011
In this article, we discuss the current state of Delaware’s fiduciary disclosure regime and the developments over the last three years.
Chancery Court Addresses Revlon Duties and Deal Protection Measures in Small-Cap Transaction
Delaware Business Court Insider | May 11, 2011
In In re Answers Shareholders Litigation, the Delaware Court of Chancery declined to preliminarily enjoin the acquisition of Answers Corp. and, in so doing, made several important observations regarding the board of directors’ management of the sales process and negotiation of the definitive merger agreement, many of which are of particular significance to smaller corporations and their advisers.
Reviewing the Standards of Review in Delaware
Insights | March 2011
On January 21, 2011, the Court of Chancery issued Reis v. Hazelett Strip-Casting Corp., a post-trial decision regarding the fairness of a reverse stock split and the resulting injury to the minority stockholders.
New Day for Nonstock Corporations: The 2010 Amendments to Delaware’s General Corporation Law
The Business Lawyer | February 2011
This article describes the impetus for the nonstock amendments and explains the structure and nuances of those amendments.
An Overview of Delaware-Specific Issues for Stockholders’ Meetings
The Review of Securities & Commodities Regulation | November 17, 2010
The Dodd-Frank Act’s adoption of say-on-pay and the SEC’s new proxy access rule implicate state law issues with regard to stockholders’ meetings. The authors discuss these issues in the context of an overview of Delaware law requirements for such meetings.
Poison Pills – How Effective Is Too Effective?
The M&A Lawyer | September 2010
Although its prevalence has been in decline in recent years, the traditional stockholder rights plan (the so-called “poison pill”) remains one of the most effective anti-takeover devices in a board of directors’ arsenal.
Amendments to Delaware General Corporation Law
Insights | June 2010
Significant amendments to the General Corporation Law of the State of Delaware (DGCL) have been introduced in Delaware’s General Assembly this year.
Prediction Protection: The Delaware Supreme Court’s Amylin Footnote
Insights | November 2009
The Delaware Supreme Court recently affirmed the Court of Chancery’s May 2009, opinion in San Antonio Fire & Police Pension Fund v. Amylin Pharmaceuticals, Inc. in a summary order.
Destaggering with Class: A Plan for Potential Targets in Troubled Times
Deal Lawyers | November-December 2009
Whether they are seeking to improve their governance score, or are responding to specific calls from significant or activist stockholders, many boards have considered eliminating their staggered boards.
The Delaware and SEC Proxy Access Regimes
The Review of Securities & Commodities Regulation | October 7, 2009
This article reviews some of the many factors that a corporation may consider when adopting a proxy access bylaw under Delaware law and compares the flexible bylaw provisions to the fixed analogues of the proposed mandatory federal regime.
Stockholder Ratification: A Review of the Benefits and Burdens
Bloomberg Law Reports | February 2009
For years, the applicability of the doctrine of stockholder ratification to various corporate transactions, as well as the effect of a ratifying vote, has been the subject of debate. The Delaware Supreme Court recently issued an opinion clarifying the doctrine, seeking to specify what it can and cannot validly accomplish. This opinion raises important issues for…
The Right Protection: More on Advancement and Indemnification
The Review of Securities & Commodities Regulation | December 2008
In three recent opinions, the Delaware Court of Chancery has addressed the scope of indemnification and advancement bylaws and has made some statements that may come as a surprise to corporate practitioners. In one of those cases, the Court held that an unvested right to indemnification or advancement in a corporation’s bylaws could be eliminated through…
Commanding Officers: The Fiduciary Duties of Officers under Delaware Law
Insights | June 2008
For years, the nature and scope of non- director officers’ fiduciary duties has been unclear. But the Delaware Court of Chancery recently held that nondirector officers are subject to the same general fiduciary standards as are directors, suggesting also that these officers are entitled to the presumption of the business judgment rule. This and other opinions…
Fair Summary: Delaware’s Framework for Disclosing Fairness Opinions
The Business Lawyer | May 2008
Directors of Delaware corporations owe to their stockholders a duty of disclosure derived from their ordinary fi duciary duties of care and loyalty. A common disclosure claim is that the target company’s disclosure document in a business combination was materially misleading or incomplete with respect to the fairness opinion relied on by the target’s board in…
Dealing with Dissidents: Vote-Buying and Management Slates
Insights | April 2008
It has become increasingly common for incumbent boards to settle proxy contests by agreeing to include on the company’s slate one or more of the nominees on the dissident’s slate. A recent Delaware decision provides guidance to boards and their advisors regarding when agreements relating to board service raise vote-buying concerns.…
The Implications of Netsmart for Private Companies
Insights | January 2008
This article examines the implications of the Court of Chancery’s opinion in Netsmart to private company M&A transactions, particularly with respect to the nature of the target company’s marketing process pre-signing (including the extent to which the board surveyed likely financial and strategic buyers) and the meaningfulness of the board’s post-signing fiduciary out.…
Winning the Class Struggle: Acquirer Strategies for Declassifying Classified Boards
The Corporate Governance Advisor | January 2008
The struggle against a classified board can be daunting. As we hope to demonstrate in this article, however, a determined acquirer has at its disposal several ways to overcome the protections inherent in the classified-board structure. On the other hand, target boards also have ways to bolster the defenses provided by the classified-board structure. No short…
Finding Safe Harbor: Clarifying the Limited Application of Section 144
Delaware Journal of Corporate Law | 2008
This article attempts to clarify section 144’s limited role and application by distinguishing the analysis under section 144 from the analysis under the courts’ common-law fiduciary analysis.
No Surprises: The Mandatory Nature of Mandatory Advancement and Indemnification
The Corporate Governance Advisor | November 2007
The Delaware Court of Chancery recently issued two opinions (Thompson and Levy) interpreting the nature and scope of indemnification and advancement provisions. 1 Though Thompson’s holding is interesting, almost as interesting is the subtext of the Court’s discussion—the Delaware courts will give boards of directors significant leeway in regulating advancement when the relevant bylaw or other…
The Price of Remorse: Paying Reverse Termination Fees to Excuse Performance
Insights | October 2007
This article raises several issues regarding the use of reverse termination fees in M&A transactions, including whether a target company may discriminate between financial and strategic buyers in setting the amount of the fee.…
Paying for the Privilege of Independence: Termination Fees Triggered by “Naked No Votes”
Insights | September 2007
The Delaware Chancery Court has never given clear guidance on the use of termination fees triggered by “naked no votes.” These occur when a target’s stockholders reject a merger agreement in the absence of an alternative or superior transaction. The Court has, however, made some statements that are instructive.…
The Shops Are Open: Delaware’s New Take on Go-Shop Provisions under Revlon
Insights | July 2007
In three recent cases, the Delaware Chancery Court provides significant guidance regarding the review and effectiveness of “go shop” provisions, which generally permit target boards of directors to solicit competing bids for a specified period of time following the execution of a merger agreement.…
- Chairman, Directors’ and Officers’ Liability Committee, ABA, Business Law Section
- Former Chairman, Corporate Documents and Process Committee, ABA, Business Law Section
Pro Bono Activities
- William E. Proudford Sickle Cell Fund, Inc., Board of Directors
- Pro Bono Counsel, Mothers2mothers International, Inc.
- American College of Governance Counsel, Fellow
- Chambers USA, since 2012
- The Legal 500, since 2016
- The Best Lawyers in America, since 2013; Wilmington, DE Corporate Governance Law Lawyer of the Year, 2023
- Lawdragon 500 Leading Dealmakers in America, Corporate, M&A, Delaware Law, 2022, 2021
- Super Lawyers, since 2012
- Delaware Today, Top Lawyer, 2022, 2021, 2016
- Delaware Law Weekly, Lawyers on the Fast Track, 2016
- New York